(dissenting).
I respectfully dissent from the judgment entered this day.
The Plaintiff, Herman Cohen, a Kenne-bunk voter and taxpayer, commenced this proceeding November 19, 1975, in Superior Court in York County. He challenges the legal sufficiency of the approval for state aid of a $4,330,000 school construction and school remodeling project proposed for that town by the Defendant, Maine School Administrative District No. 71. In this proceeding he seeks a judgment declaring that the conditions attached to approval for state aid by the State Board of Education pursuant to the provisions of 20 M.R.S.A. § 3458 have not been met, and that, therefore, no valid bonds can be issued by the District to the Defendant, Casco Bank & Trust Company, to fund the project.
In September, 1977, the two Defendants moved for summary judgment pursuant to Rule 56, M.R.Civ.P. Asserting that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law, the Defendants based their respective motions upon the pleadings and the affidavit of Leo G. Martin, dated September 27, 1977.
It appears that the affiant had become the Defendant District’s Superintendent of Schools on June 13, 1977, which was long after the underlying controversy had developed.
The issue on this appeal is whether the Superior Court erred on October 27, 1977, when it granted summary judgment to both Defendants.
20 M.R.S.A. § 3457 provides that any unit, such as the Defendant District, which signs a contract for construction and begins construction before the building plans have been finally approved by the State Board of Education shall become ineligible for school construction aid on that particular project. Here the approval given by that Board to the Defendant District on October 21,1974, was a conditional one. Originally it had been an express condition of that approval that “Department of Environmental Protection approval and sources of funding for the sanitary line must be determined prior to any state assistance for project design and construction.”
It appears that, on August 12, 1976, this same Board voted to allow the Defendant District, in lieu of connecting to a sanitary line as specified in that condition, to substitute a package treatment plant. This new condition was expressly made subject to the *551further conditions that “the Department of Environmental Protection grant approval to the new system,” and that “this change will be accomplished within the approved project budget.”
In this proceeding the facts which are of critical importance are whether the stated conditions have been met.
In pressing their parallel motions for summary judgment the Defendants offered no evidence in proof of these critical facts other than the Martin affidavit, to which was appended a letter, dated September 2, 1977, not sworn to and not certified, by the Commissioner of Educational and Cultural Services, asserting (in part upon the basis of certain letters he had reviewed) the Commissioner’s opinion that all the Board’s conditions had been met.
The majority lays great store by that letter. Although this proceeding was commenced in part to determine whether the conditions imposed by the State Board of Education had been fulfilled, the majority now decides that such was not an issue germane to the summary judgment proceeding. It asserts that the Commissioner “is statutorily charged with reviewing operative compliance' of the project as approved.” It declares that the letter offered here effectively disposed of any issue as to fulfillment of the conditions imposed by the Board.
I respectfully disagree.
The majority relies upon the provisions of 20 M.R.S.A. § 3457. After the school construction has been completed and a full report made, that statute authorizes the Commissioner to determine the total amount of state aid to be paid to the District.
Approval of a building project, however, is one thing; determination of compliance with approved plans is another. The majority attempts to equate the two.
The former is a discretionary act, entrusted by the Legislature to the Board. The latter is a ministerial act, to be performed by the Commissioner.
It was noted above that the Legislature made “final approval” by the Board before construction an express condition of state aid. It may be further noted that the Legislature requires that, for the District to obtain payment of state aid, it must first submit to the Commissioner “proof that tiie project has been completed in accordance with approved plans.” 20 M.R.S.A. § 345Q There is no indication in the statute that the Legislature intended to delegate to the Commissioner the power to make “final approval” out of that which, in this case, had been a conditional approval by the Board.
The fulfillment of the conditions imposed by the Board, therefore, remained issues of fact in the case.
The Defendants offered no admissible evidence of approval by the Department of Environmental Protection.
They offered no admissible evidence as to whether the change to a package treatment plant could be accomplished within the approved project budget.
They offered no admissible evidence of Board action relative to the conditions it had expressly imposed upon the Defendant District.
Notwithstanding such a cavalier approach by the Defendants to the proof of critical facts, their motions for summary judgment were granted in the Superior Court.
That was error.
When a motion for summary judgment is supported by affidavit, M.R.Civ.P. 56(e) establishes certain requirements which are highly pertinent here. (1) The affidavit shall be made upon personal knowledge. (2) It shall set forth such facts as would be admissible in evidence. (3) It shall show affirmatively that the affiant is competent to testify to the matters stated therein. (4) Copies of all papers referred to in the affidavit shall be sworn to or certified and shall be attached thereto or served therewith.
These requirements were not met in the case at bar.
The crucial importance of these requirements was underscored by our Court a decade ago when an employee who had been *552awarded compensation, and who had received a lump-sum settlement of a claim arising out of a work-related injury, undertook a malpractice action against the treating physician. As affirmative defenses the physician pleaded that the employee had elected to receive compensation and had failed to make demand upon the employer or its compensation carrier to pursue remedial action against the physician as the Workmen’s Compensation Act then required. When upon such pleadings the physician moved for summary judgment, the motion was supported by his attorney’s affidavit as to the records in the office of the Industrial Accident Commission, and as to his analysis there and conclusions therefrom. Upon appeal from the granting of this motion for summary judgment, our Court sustained the appeal, held that a mere certificate or affidavit of a certifying officer or other witness knowledgeable of the record, stating the existence of the record and what it purports to show, is never receivable as evidence unless made so by statute, and further declared:
The Court, before which it is produced, should be in the position to inspect the record and decide what it contains and proves. The construction of the record and its import must be left to the Court and not entrusted to the certifying officer or witness. Steeves v. Irwin, Me., 233 A.2d 126, 130 (1967).
The same rule should govern in the case at bar.
Here the affiant, Martin, averred that the Commissioner had “determined” that the Board’s conditions had been satisfied. In fact, the Commissioner’s letter of September 2, 1977, which is hearsay at best, written after he had reviewed two letters which passed between other individuals, states that the Commissioner “believes” the second of the Board’s conditions has been satisfied. Such a statement upon belief fails to satisfy our rule.
Even if the Commissioner’s letter is taken as declaring that the Board’s conditions have been satisfied, the Court should, as was said in Steeves, be put in the position to inspect the record of the agencies here involved and to determine whether the conditions have in fact been satisfied. The import of the record must not be entrusted to a witness.
Additionally, the documents appended to the Martin affidavit were neither certified nor sworn to as required by Rule 56(e), M.R.Civ.P.
Summary judgment is, as our Court recognizes, “an extreme remedy which should be cautiously invoked.” Cardinali v. Planning Bd. of Lebanon, Me., 373 A.2d 251, 255 (1977).
In that spirit of restraint, and applying the rule laid down so clearly in Steeves v. Irwin, supra, the Plaintiff’s appeal should, I submit, be sustained.